Smith v. Allstate Insurance Co

United States District Court, W.D. Louisiana, Alexandria Division

April 19, 2018

LUSTER SMITHv.ALLSTATE INSURANCE COMPANY

DRELL
JUDGE.

OPINION

JOSEPH
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

Plaintiff
Luster Smith (“Smith”) seeks payment, penalties
and interest from Allstate Insurance Co.
(“Allstate”) pursuant to his homeowner's
insurance policy. A trial on the merits was held before the
undersigned. Because Allstate has shown by a preponderance of
the evidence that Smith intentionally set the fire that
destroyed his home, Smith's insurance claim is denied.

I.
Background

A.
Procedural History

Plaintiff
Smith filed this action in a Louisiana state court against
Allstate, claiming payment under a homeowner's insurance
policy for the total destruction of his home by fire (Doc.
1-2). Allstate removed the action, premising jurisdiction on
diversity (Doc. 1). Allstate answered the complaint,
asserting the affirmative defense of arson and denying
coverage (Doc. 4). Allstate alleged the evidence showed the
fire was of incendiary origin, and Smith had a financial
motive for intentionally destroying his home (Doc. 4).

B.
Trial Evidence

1.
Eric Zeno (Neighbor)

Eric
Zeno (“Zeno”), Smith's neighbor, testified he
saw Smith leave the house early in the morning (the sun was
up). Zeno was not sure what time he saw Smith leave, but said
it could have been 6:00 a.m. (Day 1 of Trial, Witness 1).
About 20 minutes after Smith left, Zeno saw smoke coming from
Smith's house (Day 1 of Trial, Witness 1). Zeno went
outside, saw other people gathered, and found someone had
already called the Fire Department (Day 1 of Trial, Witness
1). Zeno saw Smith again when he returned to his house after
fire trucks had arrived.

2.
Kevin Smith (Plaintiff's Son)

Kevin
Smith (“Kevin”), Smith's son, testified that
he is in the Army (27 years) and the National Guard; he has
one brother; his mother is no longer living; and his father
is retired military (Day 1 of Trial, Witness 2). Kevin was
living in Arkansas when the fire occurred on July 5, 2015,
but still owned a house in Alexandria, Louisiana (Day 1 of
Trial, Witness 2). Kevin had not been to his father's
house since April 2015, but spoke to him every day on the
telephone (Day 1 of Trial, Witness 2). A friend called Kevin
and told him his father's house was on fire (Day 1 of
Trial, Witness 2). Kevin contacted a neighbor, Ms. Cooks, who
checked on his father, [1] then he spoke to his father by
telephone (Day 1 of Trial, Witness 2). Kevin testified his
father was crying and a little hysterical (Day 1 of Trial,
Witness 2). The home was an old, wood-frame house, and the
kitchen had a bow in the floor (Day 1 of Trial, Witness 2).
Kevin testified the refrigerator look like it could fall
through the floor, due to the bow (Day 1 of Trial, Witness
2). The front of the house was destroyed by the fire, but the
back of the house was not completely gone (Day 1 of Trial,
Witness 2).

Kevin
testified that his brother, Vallard Smith
(“Vallard”), was working offshore at the time of
the fire (Day 1 of Trial, Witness 2). Kevin did not know
whether his father had considered filing for bankruptcy (Day
1 of Trial, Witness 2). Kevin was unaware his father owed
about $48, 000 to the IRS because he had not been paying his
income taxes (Day 1 of Trial, Witness 2). He did not know
whether Smith was having any financial difficulties (Day 1 of
Trial, Witness 2). Smith had an IRS lien and had made
arrangements to pay it (Day 1 of Trial, Witness 2).

Kevin
testified he has things from his parents' home at his
house because he (and his brother) took a few things after
their mother passed away (Day 1 of Trial, Witness 2). Smith
also kept a few clothes at Kevin's house because he
occasionally spent a day there (Day 1 of Trial, Witness 2).
After the fire, Smith stayed in Kevin's house (Day 1 of
Trial, Witness 2). Smith continued to receive his mail at his
own address for a while after the fire, because Smith forgot
to have his mail forwarded to Kevin's house.

Kevin
testified that his parents had owned the home since 1964, and
they were married about 60 years (Day 1 of Trial, Witness 2).
Kevin testified that, although the neighborhood had changed
and become less safe, his father was very attached to his
house (Day 1 of Trial, Witness 2). Kevin also testified that
the lot itself meant something to them, since it had a large
grapefruit tree, a plum tree, a fig tree, and two pecan trees
(Day 1 of Trial, Witness 2).

3.
Anna Fuller (Neighbor)

Anna
Fuller (“Fuller”) testified that she had lived
two houses down from Smith since 1976, and her sons played
with his sons (Day 1 of Trial, Witness 3). On July 5, 2015, a
neighbor knocked on Fuller's door and told her son that
Smith's house was on fire (Day 1 of Trial, Witness 3).
Fuller's son immediately told her, and Fuller drove to
Kevin's house about 30 minutes later and told Smith about
the fire (Day 1 of Trial, Witness 3). Smith was surprised
when she told him, threw his hands up in the air, shaking
them, then got into his car and drove home (Day 1 of Trial,
Witness 3). Fuller did not know Smith was at Kevin's
house, but Smith had told her he was staying at both houses
and she had seen him at Kevin's house two or three weeks
before, so she went to see if he was there (Day 1 of Trial,
Witness 3). Fuller further testified that she did not see
Smith moving furniture out of his house (Day 1 of Trial,
Witness 3).

After
the fire, Fuller saw people taking wiring, Smith's air
conditioner, and part of his fence (Day 1 of Trial, Witness
3). Fuller did not recognize any of the thieves, but she said
a lot of people walk through the neighborhood at all hours of
the day and night (Day 1 of Trial, Witness 3). Fuller
testified Smith told her, later, that the fire had started
from the refrigerator (Day 1 of Trial, Witness 3).

4.
Mashack McCall, Jr. (Neighbor)

Mashack
McCall, Jr. (“McCall”) testified that he had
lived in the neighborhood for 60 years and across the street
from Smith since Smith moved there (Day 1 of Trial, Witness
4). McCall saw Smith the evening of July 4th when he took a
plate of food to his house (Day 1 of Trial, Witness 4).
McCall left home between 7:30 and 8:00 a.m. the next morning
to drive to his hunting camp (Day 1 of Trial, Witness 4).
McCall's wife called him about 45 minutes later to tell
him Smith's house was on fire, and his car was not there
(Day 1 of Trial, Witness 4). McCall's wife called him
again to report Smith was back home and trying to get into
his house (Day 1 of Trial, Witness 4). McCall's wife
called him a third time to verify the fire was out, Smith was
okay, and someone was going to pick him up (Day 1 of Trial,
Witness 4).

McCall
testified that he saw Smith's car at his house every day
before the fire (Day 1 of Trial, Witness 4). Before the fire,
McCall did not see Smith move anything out of his house (Day
1 of Trial, Witness 4). Two or three days after the fire,
McCall saw thieves going in and out of Smith's house,
taking things like a hot water heater and small boxes (Day 1
of Trial, Witness 4). According to McCall, the neighborhood
had changed over the years, had become “infested”
with drugs, addicts, and homeless people, and had a lot of
crime (Day 1 of Trial, Witness 4). McCall testified that
Smith's backyard was very vulnerable because there was a
vacant house behind his house and a field next to his house
(Day 1 of Trial, Witness 4). Anyone could jump over
Smith's backyard fence and enter his yard from the vacant
house or the field (Day 1 of Trial, Witness 4).

When
McCall went into Smith's house the evening before the
fire, it looked like it always did, with plaques and things
from the military, Smith's wife's teaching, the VA,
and the VFW (Day 1 of Trial, Witness 4). Smith had a white
stuffed animal in his living room and a big calendar (Day 1
of Trial, Witness 4). McCall testified that Smith checked his
son's house every day, although not always at the same
time of day (Day 1 of Trial, Witness 4).

5.
Luster Smith (Plaintiff)

Smith
testified he was 75 years old when the fire occurred (Day 1
of Trial, Witness 5). He and his wife were married almost 50
years when she passed away, and he has two sons (Day 1 of
Trial, Witness 5). Smith was in the military for 20 years,
then he worked at the VA Medical Center in Pineville,
Louisiana for 25 years (Day 1 of Trial, Witness 5).
Smith's wife taught school (Day 1 of Trial, Witness 5).
Smith receives retirement pay from the military and the VA,
as well as Social Security, for a total of $2, 898.16 per
month (Day 1 of Trial, Witness 5).

Smith
has received the National Defense Service Medal, the Good
Conduct Medal, the Meritorious Service Medal, a Bronze Star,
Service Stars, the Republic of Vietnam Campaign Medal, a
Bronze Star with Device Expert, and a Purple Heart (Day 1 of
Trial, Witness 5). Some of those awards were destroyed in the
fire, and some were only charred (Day 1 of Trial, Witness 5).
All of Smith's awards were in the fire (Day 1 of Trial,
Witness 5). Smith testified that, after the fire, he went
into the house and retrieved the 2012 calendar with his
wife's date of death circled, and a teddy bear
(“Pookie”) he had given her (Day 1 of Trial,
Witness 5).

Smith
testified his father-in-law purchased the house for his wife
in the 1960s and they immediately insured it through Allstate
(Day 1 of Trial, Witness 5). They paid $8, 700 for the house,
paid it off, then mortgaged it again for $40, 000.00 (for
remodeling) about 15 years before the fire (Day 2 of Trial,
Witness 1). Smith finished paying the second mortgage off
after the fire (Day 1 of Trial, Witness 5). Smith paid the
premiums on the Allstate homeowner's insurance policy
through the date of the fire (Day 1 of Trial, Witness 5).

Smith
testified that, although he said in his first deposition that
he had not gone into the house after the fire, he had
forgotten about retrieving the calendar and the teddy bear
Pookie a couple of days after the fire (Day 1 of Trial,
Witness 5). Smith had also said a fireman had given them to
him, which was not correct (Day 1 of Trial, Witness 5). Smith
said his memory became clearer about a week after the fire
(Day 1 of Trial, Witness 5). Smith said both the bear and
calendar were smoky but not burned because they were in his
wife's bedroom, which did not burn (Day 1 of Trial,
Witness 5). The teddy bear was a little discolored from smoke
(Day 1 of Trial, Witness 5). Smith wiped the bear down but it
is still discolored (Day 1 of Trial, Witness 5). Smith did
not remove any medals from his house (Day 1 of Trial, Witness
5). Smith said he stayed shaky for about six months after the
fire (Day 1 of Trial, Witness 5).

Smith
testified he always gets up at 5:00 a.m., has breakfast, and
dresses (Day 1 of Trial, Witness 5). On the day of the fire,
he checked on Kevin's house after breakfast, about 6:00
or 6:15 a.m. (Day 1 of Trial, Witness 5). Smith checked
Kevin's house three or four times per week, at different
times of the day (Day 1 of Trial, Witness 5). Smith never
lived for any protracted time in Kevin's house, and all
of Smith's belongings were in his own home (Day 1 of
Trial, Witness 5). Kevin did not have a TV or radio at his
house (Day 1 of Trial, Witness 5). Anna Fuller went to
Kevin's house to tell Smith his house was on fire, which
shocked Smith (Day 1 of Trial, Witness 5).

At
least a week after the fire, an Allstate representative
(Childs) visited Smith at Kevin's house and took a
picture of him with the teddy bear Pookie and the calendar
(Day 1 of Trial, Witness 5). Smith was still not fully alert
and was somewhat confused (Day 1 of Trial, Witness 5). The
fire was of incendiary origin and gasoline was used ...

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